Adult Guardianships and Conservatorships

In guardianships and conservatorships, the court appoints someone to make decisions for another person. To establish a guardianship or conservatorship, a petition must be filed with the court to determine if the decision making capacity of the person is so impaired to be in need of a guardian and/or conservator. Once established, the court requires annual status reports.
 

The Difference Between Guardianships and Conservatorships

In a guardianship, the decision maker is called the “guardian.” The person unable to make decisions is called the “protected person.”  A guardian makes decisions about medical care, where the person lives, and other personal matters. In a conservatorship, the decision maker is called the “conservator.” The conservator makes decisions about the protected person’s property and finances. The same person can be both guardian and conservator for the protected person.
 

Creation of a Guardianship or Conservatorship

The process begins by the filing of a petition with the court requesting guardianship and/or conservatorship be implemented over another. The law requires several steps to protect the person's rights. The person named in the petition as needing a guardian or conservator must be notified. They must be given at least 20 days after notice before the court hearing is held. A hearing will be held to determine if the proposed protected person (or respondent) meets the standard for implementation of guardianship or conservatorship. The judge decides who will be appointed as a guardian and/or conservator.

In a guardianship, the petitioner  must prove by clear and convincing evidence that the proposed protected person’s (or respondent's) decision making capacity is so impaired that the person is unable to care for the person’s personal safety or to attend to or provide for the person’s necessities such as food, shelter, clothing, and/or medical care, without which physical injury or illness might occur. In a conservatorship, the applicant must prove by clear and convincing evidence that the proposed protected person’s (or respondent's) decision making capacity is so impaired that the person is unable to make, communicate, or carry out important decisions concerning the person’s financial affairs.

The proposed protected person must be represented by an attorney. The court will appoint an attorney if the proposed protected person cannot hire one.

Types of Guardianships and Conservatorships

There are several types of guardianships and conservatorships under Iowa law. In a limited guardianship or conservatorship, the court tailors the guardian or conservator’s power to fit the needs of the protected person. The guardian or conservator’s powers are limited to certain functions. Whenever a guardianship or conservatorship is requested, the judge must consider whether less restrictive alternatives are appropriate such as a limited guardianship or conservatorship. This allows the protected person as much independence as possible.

A standby guardianship or conservatorship only goes into effect if a certain event happens. An example is when the person becomes incapacitated and unable to communicate their needs to others. In a standby guardianship or conservatorship, a competent individual chooses the person they would like to serve as guardian or conservator but the petition is not filed with the court until the triggering event occurs. 

A temporary (emergency) guardianship or conservatorship can be in effect only for a limited time, purpose or until a permanent appointment is made.

Notification of Guardianship and Conservatorship Powers

In a guardianship and conservatorship cases, the protected person is entitled to written notice of the powers of the guardian and the conservator. The written notice must also advise the proposed protected person of the right to an attorney and the possible loss of civil rights.

Powers of the Guardian or Conservator

The guardian has the general power to make health care treatment and placement decisions for the protected person. There are some decisions which require the approval of a judge. One example is changing the protected person’s permanent residence to a place that gives the protected person less freedom than the protected person’s current residence. Also, the judge’s approval is required for decisions regarding life sustaining procedures (like a Do Not Resuscitate (DNR) decision).

The conservator has general power to collect income, pay bills, and save the protected person’s assets and to dispose of the protected person’s personal property at a fair price. The judge’s approval is needed for some decisions such as the selling of real estate.

Guardianship and Conservatorship Reports

Guardians and conservators must complete and submit reports to the court about their activities on behalf of the protected person. A guardian is responsible for three types of reports. An initial report must be made within 60 days of the guardian’s appointment. An annual report must be made on each anniversary date of the guardian’s appointment. A final report must be made within 30 days of the termination of the guardianship. A conservator must file an initial report and an inventory within 60 days of appointment. Supplemental reports must be filed whenever any additional property comes into the conservator’s hands. Annual reports must be filed on the anniversary date of the conservator’s appointment. A final report must be filed when the conservatorship is terminated.

Termination or Change of a Guardianship or Conservatorship

A guardianship or conservatorship lasts until the protected person dies or until someone returns to court and asks the court to change or terminate the guardianship or conservatorship. To change or terminate a guardianship or conservatorship, the protected person must show some decision making capacity. The guardian must then prove by clear and convincing evidence that the protected person’s decision making capacity continues to be so impaired that the person is unable to care for the person’s personal safety or to attend to or to provide for the person’s necessities such as food, shelter, clothing, and/or medical care, without which physical injury or illness might occur. For conservatorship, the conservator must prove by clear and convincing evidence that the person’s capacity is still so impaired that they are unable to make, communicate, or carry out important decisions concerning the person’s financial affairs.  The judge will determine whether to continue the guardianship and/or conservatorship. If the guardianship or conservatorship is continued, the judge decides whether the guardianship or conservatorship should be full or limited. Guardianships or conservatorships for adults can terminate if the judge determines the protected person no longer meets the standard for guardianship or conservatorship or with the death of the protected person. In addition, a conservatorship can be terminated when all assets have been liquidated.